Indecent exposure

Supreme Court | The high court debates whether government should continue to regulate indecency on broadcast television

WASHINGTON-In 2008 the Federal Communications Commission fined 52 ABC affiliates for showing in prime time an episode of NYPD Blue titled "Nude Awakening." The television program, which aired in 2003, showed a nude woman taking a shower. Two lawyers before the U.S. Supreme Court Tuesday argued whether the scene was sexual.

The FCC's lawyer, Solicitor General Donald Verrilli Jr., said it depicted a young boy's sexual awakening as he watches the woman in the shower. A lawyer for various network affiliates, Seth Waxman, argued that the episode was about the confusion of "blended families," and the shower scene was not sexual but rather "a woman in the quotidian activity of preparing for her morning shower."

The high court, in the case FCC v. Fox Television Stations, is exploring whether the FCC should keep its authority to regulate indecency-be it profanity, obscenities, or sexual content-on television stations broadcasting over the public airwaves.

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In a 1978 decision, Pacifica v. FCC, the court affirmed the FCC's authority to require appropriate content from 6 a.m. to 10 p.m., when children might be watching, but networks and their affiliates argue that most households now have unregulated cable and the rules for local broadcast channels are needless and burdensome to free speech. Currently, only 11 percent of U.S. households are not hooked up to cable or satellite services and receive only broadcast channels, according to the consumer group Nielsen, though that number is declining.

The 2nd U.S. Circuit Court of Appeals agreed with the network affiliates, and said the FCC's regulations were unconstitutionally arbitrary, which led to the FCC appealing to the Supreme Court.

At the high court the network affiliates focused their arguments on that question of arbitrariness. The FCC's rulings are context-based so the commission allowed profanity in a network broadcast of the World War II movie Saving Private Ryan, and nudity in another WWII movie, Schindler's List, while it prohibited profanity in a documentary on the blues.

"It's like nobody can use dirty words and nudity except for Steven Spielberg," Justice Elena Kagan said jokingly. The FCC urged the Supreme Court to focus on the specific shows in the case, like the NYPD Blue episode, which the commission argues wasn't decided arbitrarily.

"Yes, we would concede there's not perfect clarity with regard to this rule," Verrilli said on behalf of the FCC. "The alternative would be worse. The commission could say, 'Never say the following words, never show nudity.' … The alternative of perfect clarity would be a less effective accommodation of First Amendment values."

The FCC argued that it sees very few "hard cases" where a decision is mostly subjective, and noted that the networks could not come up with more than a few examples of arbitrariness over many decades.

Chief Justice John Roberts appeared to side with the FCC, rejecting the argument that indecency rules should be overturned because most people have cable. "There are 800 channels where they can go for that [indecent material]," he said. "All we're asking for-all the government is asking for-is a few channels … where they are not going to hear the S-word, the F-word."

Carter Phillips, one of the lawyers for the network affiliates, responded that Roberts could not elevate one person's free speech over another's.

Justice Samuel Alito asked Phillips whether, if the Supreme Court rejected the FCC's authority to regulate indecency, audiences would see "a lot of people parading around in the nude and a stream of expletives?" Phillips said the networks would show "natural restraints." Justice Antonin Scalia returned, "What you acknowledge to be the vulgarity of cable suggests otherwise."

Justice Anthony Kennedy asked whether the rules are more deeply symbolic "that we aspire to a culture that's not vulgar in a very small segment." Scalia joined that line of thinking: "Just as we require some modicum of dress for people that attend this court, the government is entitled to insist on a modicum of decency-I don't think it even has to relate to juveniles."

The federal government owns the broadcast channel frequencies and licenses them to local television stations.

"Look, you've been given a privilege and that gives the government some leeway to impose obligations on you," Kagan said to the network affiliates' lawyer.

Groups like the libertarian Cato Institute and the Reporter's Committee for the Freedom of the Press filed amicus briefs on the side of the broadcast stations, while National Religious Broadcasters, the Parents Television Council (PTC), and the Family Research Council filed briefs on the side of the FCC.

The PTC has been the main source of headaches to the television networks, because the group's TV analysts patrol shows for cases of indecency and report them to the FCC.